Category: Alabama Immigration Law

In our previous blog, we speculated about whether the recent letters Alabama employers have been receiving from the Alabama Departement of Labor regarding alleged incorrect/invalid social security numbers was an attempt to enforce the Alabama Immigration Act. I decided to call the Alabama Department of Labor and inquire about the letter. Heres how it went:

I called Vivian Cooper who issued a letter to one of our clients. She was on the phone and the individual who answered the phone asked if someone else could help. I explained the subject of my call and she routed me to “Tony”. Here is what Tony said.

When asked how the names/numbers were compiled, he said that they were pulled from kickbacks from their software system, and not the result of any interaction with the Social Security Administartion or other federal agency.

Tony said that most of the discrepancies with social security numbers have been due to name changes.

When I mentioned to him that we were seeing a lot of foreign nationals and Latinos/Hispanics on the lists, he said that citizenship status had nothing to do with the lists. I then asked whether Hispanic double last names could be causing the issue, and he said that is very possible.

In terms of what to provide in response, he said either a copy of the social security card or the E-verify confirmation – there was no indication that both had to be provided. I mentioned that E-verify confirmation would only exist if the employer was an E-verify participate at the time of hire, but he did not seem to be very familiar with E-verify rules.

When I asked what would be done if the social security card or number turns out NOT to be legitimate, he said that they had not figured out what to do about that yet. He said that some employers have turned in tenative non-confirmations from E-verify and they are wondering what to do with them.

I then just asked him if this process has anything to do with the Alabama Immigration Act, and he said no. He said this was not about work authorization. Rather, it was just about cleaning up their records.

I asked him if they have been receiving a lot questions, and he said they have received some but most employers were just responding with what they have.

So, it remains to be seen what the Alabama Department of Labor will do with the information it receives from employers and whether there will be an follow-up in the event an employer provides a copy of a social security card that the Department determines to be invalid. Well stay tuned.

Some Alabama employers recently received an interesting letter from the Alabama Department of Labor that goes something like this:

An audit of your wage report for the quarter shows incorrect/invalid social security numbers were reported. Please review the attached printout and provide the correct social security numbers of each employee. Listed below are the acceptable documentations to be submitted:

Copy of valid social security card

Proof of validation through U.S. Citizenship and Immigration Services E-Verify website

Failure to respond WITHIN 30 DAYS may result in taxes and/or penalties.

A letter pointing out a discrepancy with a social security number is not that surprising, but the Alabama Department of Labors request for E-verify confirmations is a little bit of a shock and leads to some questions, such as:

Is the Alabama Department of Labor trying to enforce the Alabama Immigration Law by confirming that employers are using E-verify? (Im not sure the Alabama Department of Labor has the authority to ask for E-verify confirmations on the same basis as the federal government agencies such as ICE).

Is this letter about ensuring employees are work authorized?

What will be done with the information provided to the Alabama Department of Labor?

While the answers to these questions are unclear, employers who receive these letters should proceed cautiously in contacting the applicable employees and asking for documentation to confirm their social security numbers. There are implications both in terms of avoiding discrimination claims investigated by the Office of Special Counsel and in terms of avoiding worksite enforcement fines by ICE.

These letters suggest that the Alabama Department of Labor actually may be kickstarting enforcement of state law, HB56, that requires that employees be work authorized. Remember that HB56 Section 15 violations includes business license suspension for 10 days for the first offense. That could be painful.

There have been many headlines regarding the United States Supreme Court’s decision in Arizona v. U.S . The question before Alabama employers is what will be the practical impact of this decision on the employment provisions of Alabama’s immigration law?

Before coming to any conclusions, the Arizona case must be considered in combination with Chamber of Commerce v. Whiting, another recent Supreme Court case. In Whiting, the Supreme Court upheld Arizona’s mandate that all Arizona employers use E-Verify and upheld Arizona’s authority to impose penalties such as the suspension or revocation of the business licenses of in-state employers that employ unauthorized aliens. The Supreme Court held that “While IRCA [the federal law] prohibits States from imposing ‘civil or criminal sanctions’ on those who employ unauthorized aliens, it preserves state authority to impose sanctions ’through licensing and similar laws.’” §1324a (h) (2).”

Remember that under section 15 of Alabama’s immigration law, which remained unchanged after recent amendments to the law, employers are subject to penalties if they knowingly employ, hire for employment or continue to employ unauthorized workers within Alabama. The penalties for hiring unauthorized aliens range from temporary suspension of business licenses and permits for the first violation to permanent revocation of the business licenses statewide for multiple violations. Furthermore, employers that are found to have violated the law will have to comply with additional reporting requirements for up to three years after discovery of a violation. As well, Alabama employers who fail to register and use E-Verify will lose the safe harbor protection with respect to the hiring of employees whose employment authorization has been verified through the program.

So what does this all mean? The Arizona decision makes absolutely clear that the Immigration Reform and Control Act of 1986 (“IRCA”) is a comprehensive framework that covers all aspects of enforcement related to the employment of unauthorized workers. It thus calls into question the states’ ability to impose any penalties not directly related to “licensing or similar laws” on employers for the hiring of unauthorized workers. However, as Pepper mentioned in an earlier post, even with the sweeping preemption language found in the Arizona decision, the Court does not call into question its earlier decision in the Chamber case. Therefore, some of the sections of Alabama’s immigration law, such as the E-Verify mandate and the penalties imposed against those employers that knowingly hire unauthorized aliens, may likely survive legal challenges.

On the other hand, other employment-related provisions of Alabama’s immigration law like section 17 that provides a claim for discrimination and wrongful termination and section 16 that disallows a tax deduction for the expense associated with employing unauthorized workers (both of which are currently enjoined by lower courts) may be more likely to be preempted by federal law under the rationale the Supreme Court used in the Arizona decision.

Many may wonder how President Obama’s recent immigration action might affect Alabama’s immigration law. First, let’s examine what President Obama did. President Obama directed the U.S. Department of Homeland Security to grant “deferred action” on a case-by-case basis to certain potential DREAM (“Development, Relief and Education for Alien Minors”) Act beneficiaries. “Deferred action” means that DHS (or ICE) will not deport or remove, or initiate proceedings to deport or remove, the individual. Those who meet the criteria described below will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. Being granted deferred action, however, does not give an alien a path to permanent residence, lawful status, or citizenship.

The following are the minimum criteria these potential DREAM Act beneficiaries will have to meet to benefit from deferred action:

1.) Entered the United States while under the age of 16;

2.) Continuously resided in the United States for at least five years preceding the of the announcement and are currently present in the United States;

3.) Currently enrolled in school, graduated from high school, obtained a general education development certificate, or honorably discharged from the Coast Guard or Armed Forces of the United States;

4.) Not convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5.) Not older than 30 years of age.

Now, this is the important part: the period in which these potential DREAMERS are granted deferred action will be considered a period of stay authorized by the Attorney General. In my opinion, during this period they will be considered to be lawfully present in the United States and thus they may be eligible for certain Federal and State benefits, even though they do not have lawful status.

This deferred status may impact the enforcement and application of Alabama’s immigration law because many sections of the law apply only to those who are not lawfully present in the United States. So, for example, those individuals granted deferred action may be permitted to enroll and attend post-secondary education institutions in Alabama, enter into public records transactions with the state (e.g., apply for or renew a driver’s license or business license), and as mentioned above, be eligible for employment. Time will tell the real impact.

By now, all Alabama employers must be enrolled in E-Verify to be compliant with Alabama’s immigration law. Enrollment is just the first step, however. Following E-Verify’s rules of use is a whole new ballgame.

I recently spoke at a legal conference for the Greater Pensacola Society of Human Resource Management regarding immigration worksite enforcement and E-Verify challenges. (I look for any excuse to go to the Gulf Coast.) Through the questions I received at the conference, I learned that many employers (in Alabama and elsewhere) are struggling with following the E-Verify rules.

And there is good reason for their confusion. I have heard other lawyers provide inaccurate information on this subject. For example, another lawyer told a group of employers that employers should E-Verify all existing employees (not just new hires) to make sure the employers’ workforces are authorized. Unless the existing employee is assigned to work on a qualifying federal contract, an employer is prohibited from E-Verifying existing employees.

The Verification Division of USCIS is monitoring E-Verify compliance by performing routine reviews of employers’ accounts. In other words, big brother is watching. Some of the more common rule violations or concerns that have been pointed out to employers via letters include:

•Failing to initiate E-Verify employment eligibility verification within three days of the hire date

•E-Verifying existing employees rather than new hires, unless authorized to do so

•Having an unusual number of Tentative Nonconfirmations (TNCs) that were uncontested by employees, which raises a suspicion of whether the employer is printing out the notices and allowing the employees to contest

•Verifying the same employee multiple times

•Failing to verify any employee for an unusual length of time, which might suggest that the employer is not verifying all new hires

In some of these cases, employers have been requested to contact the Verification Division through E-Verify@dhs.gov within a short time frame after receiving its letter. Misuse or violations of E-Verify rules of use may result in action by USCIS or trigger an audit by ICE.

Procedures for using E-Verify may be found in the E-Verify User Manual for Employers. Additional information may be found here.